Nicole’s playlists surprised me. I saw Michael Jackson and danced for a minute to the music. Nicole got worried, signaling for me to stop. Surely the jailers would come and crack down on us for making too much noise. I didn’t care. Her music fed my soul. We’d eventually move on to sports and my obvious love of this topic. The Astros dominated our conversations during the moments when Nicole wasn’t trying to slip in mentions of hockey. We were an odd team—the baseball-obsessed black man from rural Texas and the hockey-loving Canadian expatriate, trying to change the world from her perch in Houston. When the conversation moved to sports, Nicole knew she could go home. She knew I was all right, and that I’d be OK until our next meeting.
Our friendship wasn’t one-sided, of course. For everything Nicole gave to me, I gave something back. On days when I wasn’t as strong, she assured me of the work being done on the case. And as it goes, the work on the case sometimes left Nicole needing reassurance from me. I can imagine how hard it was. Just as I tried to stay positive behind the door of a prison cell, Nicole struggled with the reality that every caring criminal defense attorney must understand. In conversations since my release, I’ve talked to many dedicated people who’ve said that representing a genuinely innocent client can be a constant torment. It’s those people they want to help the most, but the system sometimes makes it difficult.
“We’re working as hard as we can, Anthony,” she’d tell me. “But these people just won’t give in.” She seemed dedicated to seeing the case through. Still, some days she wasn’t sure that the outcome would be the one we all hoped for.
Her doubt was natural. I dealt with it too, firmly believing that courage isn’t defined by certainty but by the ability to face daily uncertainty with resolute purpose. I’d concluded that even if nothing else was in my control, I could control my identity. I decided to be the man fighting for justice, whether I died at the hands of the state or earned my release into the free world. It was that thought, and that comfort in this identity, that helped me power through those long nights that sometimes came after Nicole had no good news to share.
However, when the moment called for it, Nicole snapped from friend to fierce fighter. Back in April 2007, my legal team had asked the judge to remove Joan Scroggins, the assistant prosecutor who’d worked with Charles Sebesta on the original trial. The Fifth Circuit had found severe misconduct with the first team, and we thought the presence of Scroggins in the new trial violated all notions of justice. She’d sat on the prosecutor’s team when I was first tried at the trial level. She must have had knowledge of all the misconduct that was going on in my case, and she did nothing to report it back then. It is every attorney’s duty and responsibility to report to the state bar any acts of misconduct by another attorney. She supported Charles Sebesta’s work, so to us, it seemed clear that she condoned his misconduct. We felt that her presence on the DA’s team now would compromise the quality of justice the courts should be seeking.
This turned out to be a risky move. The judge didn’t just recuse Scroggins; she recused the entire office because the lead prosecutor argued that she could not try the case without Scroggins. This set in motion the search for a special prosecutor. I sat in jail for more than two weeks on a capital murder case with no prosecutors representing the state against me. The judge decided to set a $1 million bond to keep me in jail, while she found a special prosecutor to fill this role.
It looked like justice in my case was going to be delayed yet again.
NOVEMBER 2008:
CLOSING IN ON THE STATE’S CASE
WORD FINALLY CAME THAT the court had found a special prosecutor. Patrick Batchelor had earned notoriety in the case of Todd Willingham, a Texas man executed in 2004 on the basis of faulty arson evidence, what’s now called “junk science.” Willingham’s claim of actual innocence had garnered international support, and his execution prompted outrage. Batchelor’s appointment to my case didn’t give much cause for celebration.
Lance Kutnick, a protégé of Sebesta, was tasked with reinvestigating the case. This began with officers pulling me from my cell one day to take a skin swab. The state wanted to see whether their dog-sniffing team could link my scent to the clothes taken from the victims after the crime. Those clothes had been kept in old paint cans, a method Burleson County used to store its evidence. The outcome of this investigation is easy to guess. The state claimed that even after nearly twenty years, the dogs had found my scent on the victims’ clothing. It all felt too familiar. Batchelor and Kutnick seemed intent to follow Sebesta’s lead in winning a conviction at all cost.
In the meantime, there’d been another shake-up in my representation. In September 2008, Jeff had withdrawn from my case for personal reasons. David had gone with him. Good to his word, though, Jeff had recruited Katherine Scardino and her partner Jimmy Phillips to replace him and David as my lead attorneys. Katherine came with a stellar record of vigorously defending her clients and had a reputation as a fighter who didn’t back down from a challenge. Jimmy kind of flew under the radar, but he knew how to work the system, and he had a brilliant mind.
Nicole was still with me, loyal as ever, and my team gave me confidence. Katherine and Jimmy didn’t share Nicole’s sense of certainty in my innocence. They had to work up to that. Defense attorneys, I’ve learned, are trained to question everything, including their clients. Defendants lie at times, and old, savvy criminal defenders have heard it all. They went through my case file as most did. The layers of malfeasance revealed themselves in due course. A lying officer here, and a broken speaker there. In time, Katherine and Jimmy were certain, too, that they were representing an innocent man.
In 2009, a plea offer from the prosecutor arrived with a thud: if I pleaded guilty, they would commute my death sentence to life in prison. Batchelor didn’t have much interest in trying the case to a verdict the second time around, but neither did he want to set me free. He did what I thought he might do: he offered me a life sentence as a way to end the case and avoid a new trial altogether.
“Anthony, I’ve got some news for you,” Nicole told me during a visit to the jail. “Just know that as your attorney, I’m obligated to tell you all the offers. Here goes. The DA’s offered you a life sentence.”
“But what about giving me my freedom?” I asked.
“I knew you’d say no. I had to tell you anyway. Screw him and his life sentence. But there’s something serious we have to think about. If the DA offers time served and your freedom in exchange for a guilty plea, would you be willing to take it?”
I thought about it for a while as I stared at the four walls around me. I’d been in one prison or jail or another for most of my adult life. My sons were then twenty-seven, twenty-eight, and thirty-two years old, and my oldest son Terrell had one son of his own. My youngest son Alex had three children. I’d missed being a father. I didn’t want to miss being a grandfather too. During my incarceration, friends and family members had died. I was tired of listening to the Astros games behind prison walls. I was fed up with prison food. I missed female companionship. I would give anything in those moments to be able to throw my leg across my woman’s leg at night.
“There are people out there that will always believe in your innocence,” Nicole continued. “And some will always think you’re guilty. I don’t know how to advise you. I’ll support you whatever decision you make.”
I wanted my life back, but I didn’t want the deal, were it to be offered me. Lies had put me behind bars and had kept me there. Lies had earned me the early life conviction that made it harder for me to get the opportunities I deserved. I had to live with myself. I’d rather die in that cage an honest man than walk out free a fraud.
“They’re either going to kill me or set me free,” I told Nicole. “There won’t be a deal.”
Her eyes widening, Nicole nodded as if she understood. We’d been on the same page since the first day she walked onto death row. Surely she didn’t want to lose her friend, but she knew I’d r
ather die than lie to myself. Maybe I’d been desensitized to it all. There’d been so much death around me that I’d grown immune to it. I’d seen more than three hundred men go to their death. For years, they’d controlled me and the men on death row with fear. When I stopped fearing death, the jailers no longer had a hold on me. The decision was mine to stand on the firm foundation of the truth, rather than bending for the easy out.
Batchelor had an idea. He wanted me to take a lie-detector test, presumably to offload some of the guilt he felt over keeping me caged. If I passed the test, he said, they’d drop the charges. I’d seen this game before. A month later I found myself in the back of a cop car, heading to Dallas to test my truth. Nicole flew up to be with me for moral support. I was excited, of course. It felt like showing up for a math test knowing every question and all the answers. I knew they’d been playing games and that this could be another. I was willing to chance it, though, because it might just set me free.
The facility was different than what I was used to. It wasn’t a jail. It was a commercial building, not far from town, with long hallways and snaking cubicles. They took me into a room, and I saw Nicole standing across the way. She gave me a nod and I smiled. The polygraph operator had been in law enforcement. He had quit to set up his own polygraph firm, and now he was assessing my results. This made me uneasy. My first polygraph had been examined by a man from the Texas Rangers. I knew how easy it was to interpret the test to get predetermined results. I had to stay calm. On death row, I’d developed little phrases, so-called life thoughts, to get me through the testier times. God’s got me, I’d remind myself when I needed to stay calm. It settled me and centered me on the idea that I was protected from the storms around me.
The lead-up to the test was monotonous. The operator came in and out, asking me a handful of questions before retreating into some back room. I tried to imagine what he might be doing. I ate lunch right in the polygraph chair. I’d been up since around 3:30 a.m., and I spent many hours in that small room before the operator was finally ready to administer the test. He clamped the machine to my body and fired away with questions. For the first time in many years, I’d felt nervous. It was a strange phenomenon, fighting for my freedom again and again. I’d been fighting for many years, of course, but writing letters is very different than answering the questions of a state-administered polygraph. I answered fifteen minutes of questions before the operator left. My insides spun in knots. I’d felt nervous for several reasons. The main reason was that this could be the test that finally helped give me back my freedom. I couldn’t sleep the night before. I was sure that I would pass the test and put myself in a position to regain my freedom. I was also nervous because the last time I offered to take a polygraph test they said that I had failed it, and I ended up on death row. I wasn’t ready to trust Burleson County, but I had so little to lose.
Nicole entered not long after to tell me the somewhat unsurprising news, sadly: I’d failed the test.
Feelings of resentment and despair flooded in. It wasn’t that particular test that brought me down but, rather, the cumulative effect of a thousand little setbacks. It felt like a carnival game rigged against me. Still, my expectations for the prosecutor’s office were so low an ant could clear them. I knew that the fight would continue. There’s some freedom in knowing the truth when others don’t. I wanted to live, for sure, but if they killed me, I knew they’d have innocent blood on their hands.
I could tell that the test results had shaken Nicole. She lowered her head a bit, confused by the results. Deep down in the places where intimate knowledge of a crooked system hides, she knew that the state could make that test say whatever they needed it to say. On the surface, though, she was disappointed.
The prosecutor’s approach had been transparent. He wanted to shake the faith my attorneys had in my innocence. Maybe if he could get my team to question whether I was truly innocent, they might back off and make the state’s job easier. He didn’t know Nicole, though, and he didn’t know that she’d been fighting for my life for years. Even if she was shaken for an afternoon by the results of a single test, she had a half-decade of experience on the case to bring her back into the fold. My team wasn’t deterred. Neither was I. I felt resolute in the commitment to fighting for my life.
The last-ditch attempt to manipulate my attorneys failed, and prosecutors dropped from the case like flies. The Attorney General’s Office refused to pursue the case, giving the judge no official reason. Even Batchelor found a way out: citing health reasons, he removed himself, leaving the trial judge to find yet another special prosecutor. It was as if no one wanted to do the worst thing, but no one had the guts to do the right thing either.
JANUARY 2009–OCTOBER 2010:
FREEDOM WITHIN REACH
JANUARY 2009 HAD BROUGHT a personnel change to the local DA’s office. Bill Parham won the race in Burleson for district attorney, and though I didn’t know him, I had reason to question the intentions of any person who would actually campaign to be the DA of that county. It was a matter of negative self-selection, I concluded. I didn’t know where Parham stood on my case. In 2010, however, he and Judge Towslee-Corbett were able to select and hire a second special prosecutor. Kelly Siegler was brought in to handle the case.
Siegler was as hard-nosed a prosecutor as you’ll find in Texas. She’d gained acclaim on the show Cold Justice and once won a death penalty trial by straddling a dummy and re-creating how in her view the defendant stabbed the victim. If there were fantasy leagues for death-seeking district attorneys, she’d be a top pick. With nineteen men sent to death row, Siegler had many scalps lining the wall of her office. I knew things had just gotten that much tougher for me.
New interest appeared around my case. During this time, journalist Pamela Colloff of the magazine Texas Monthly dug deep into my case file. She wanted to interview me for an upcoming story. When she visited, we talked for at least four hours about the dynamics of my case. I watched her mouth fall agape time after time as I recounted the ways that the prosecutor’s office had procured my conviction. She tried to keep it neutral, to maintain her journalistic objectivity. After all, she wasn’t writing a puff piece about a condemned man. She was writing in search of the truth. Beneath that journalistic facade, I could tell she believed in my innocence. We decided to stay in touch. She might need to ask follow-up questions for her story, and I sensed that she could be a powerful ally.
Weeks later, Pamela requested another visit to continue the interview. The sheriff denied her request. If I wanted her to return, I had to put her on my regular visitor list, which meant that our conversations would be monitored. The interview became impractical. We decided to correspond by mail instead. For a few months, we wrote back and forth. I answered her questions and offered some of my own. Pamela’s faith in my story grew stronger, and she’d eventually use her pen to shine a light on what had happened.
Meanwhile, in July 2010, Kelly Siegler reached out to my team to request a meeting. No one knew why she wanted to meet, and Nicole was skeptical. Maybe she wanted to intimidate my lawyers. Perhaps she wanted to discuss a deal. As it turned out, the meeting was one giant game of poker. Neither side would reveal much. What we didn’t know was that Siegler had come to believe in the possibility of my innocence. She set out, she claimed, to dot all the i’s and cross the t’s in hopes that she could secure a conviction that would stick. She walked away thinking she might have been handed the case of an innocent man. She’d called the meeting to help fill in some of the blanks in the story, though we didn’t know it at the time.
Pamela Colloff’s article “Innocence Lost” ran in Texas Monthly in October 2010. It penetrated the inner reaches of the Texas intelligentsia. Colloff meticulously examined the facts and contextualized all that had happened both inside and outside the courtroom. She wrote of the experience of hearing my words pour out in the weeks before my release. “As we talked, his story came tumbling out: about the Rangers, who were certain he was g
uilty, no matter what he said to the contrary; about the lineup, in which a woman he had never seen before had fingered him as the killer; about his trial, in which he listened to witnesses testify that he had confessed in jail to his guilt; about the souvenir knife, which the prosecution had held up as the murder weapon; about the man whose accusations against him could never be taken back, even after a dying declaration attesting to his innocence. We had been allotted two hours for our visit, but it was not enough.”
Nicole drove all the way to Burleson County to deliver the article. The consequences of Pamela’s writing were crucial to my fate. If she hit it out of the park, then people would notice, and public opinion would pressure the prosecutors to do the right thing for a change. I knew I didn’t have many more chances. Pamela did hit a home run, though—and more. She told the public, for the first time, the true story of Anthony Graves, an innocent man railroaded nearly to death by a prosecutor intent on destructive injustice. This was a much-needed grand slam in my favor, it turned out.
It was finally my time. With public pressure mounting, Siegler did the unexpected. She called Nicole with her decision, as my legal team scrambled to get back to Burleson County.
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